Barker v. Mitchell et al

Filing 40

ORDER OVERRULING OBJECTIONS AND ADOPTING 22 REPORT AND RECOMMENDATIONS. Defendants' motion to dismiss is GRANTED with respect to plaintiff's claims of retaliation. It is further ORDERED that the defendants' motion to dismiss is DENIED with respect to plaintiff's remaining claims. Signed by Judge Ron Clark on 9/20/16. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ARTHUR JOYAL BARKER

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VS.

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J. NANCY MITCHELL, ET AL.

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CIVIL ACTION NO. 9:15cv64

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Arthur Joyal Barker, an inmate at the Powledge Unit, proceeding pro se, brought
the above-styled lawsuit against J. Nancy Mitchell and Stephen Martin.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the defendants’ motion to dismiss be granted with respect to
plaintiff’s claims of retaliation. However, the Magistrate Judge recommended the defendants’
motion be denied with respect to any remaining claim.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record and pleadings. Plaintiff filed
objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo review
of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
Plaintiff objects to the Report, asserting that defendant Martin’s actions were in retaliation
for a 2011 incident in which plaintiff complained to the Texas Medical Board. Additionally,
plaintiff complains that defendant Martin’s acted with malicious intent.

However, as the

Magistrate Judge observed, plaintiff has failed to establish direct evidence of motivation or allege

a chronology of events from which retaliation any plausibly be inferred. See Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995). Plaintiff’s conclusory allegations are not sufficient to demonstrate
otherwise. After careful consideration, the court concludes plaintiff’s objections are without merit.
ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ADOPTED. It
is therefore
ORDERED that the defendants’ motion to dismiss is GRANTED with respect to plaintiff’s
claims of retaliation. It is further
ORDERED that the defendants’ motion to dismiss is DENIED with respect to plaintiff’s
remaining claims.
So ORDERED and SIGNED this 20 day of September, 2016.

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Ron Clark, United States District Judge